Law360, Philadelphia (November 22, 2016, 3:41 PM EST) — A Pennsylvania appeals court on Tuesday upheld a Luzerne County township’s decision to deny a zoning exemption for a wind farm developer, agreeing that the developer failed to provide a proper site plan.
The Commonwealth Court rejected the appeal of EDF Renewable Energy, which sought a permit to build 25 wind turbines in Foster Township.

In December 2014, the township’s Zoning Hearing Board determined the company’s proposal lacked the details specified in a local ordinance governing exceptions to the zoning code.

“Our review of the record confirms the ZHB’s conclusion that EDF did not satisfy the objective requirements of the ordinance,” Judge Michael Wojcik said in the opinion.

EDF applied for the permit to build the 25 turbines, approximately 525 feet high, along with roads, collection cables and a substation in July 2014. But a zoning officer denied the request, according to the opinion.

The company, which is headquartered in San Diego, then applied for a special exception from the township’s ZHB. Under the township’s ordinance, the board can make exceptions for uses that are neither specifically permitted nor denied in a zoning district.

The ZHB then held a multiday hearing on the permit application, at which EDF presented testimony and evidence about the plan for the turbines, including a copy of the 36-by-24-inch map it provided with its application.

Several residents testified in opposition, citing light pollution and detrimental impacts on their property values, among other concerns.

When the ZHB sent a letter to EDF in January 2015, it explained that the map provided by the company did not show the location of the roadways or the location of the 25 wind turbines, proposed collection cables and substation. It also said that the township’s planning commission, which had been asked to weigh in, determined that the wind farm was not compatible to permitted uses in the district and did not fall under the township’s comprehensive plan.

EDF next appealed the case to the Luzerne County Court of Common Pleas, which found that the company did not provide a site plan and it fell short of the requirement to show the project was compatible with the comprehensive plan.

The Commonwealth Court proved to be of similar mind. While EDF argued that witnesses used the map to point out the specific location of features on the farm, the court said this was not enough to meet the information requirements of the township ordinance.

“While EDF referred to a map during the hearing, neither the map nor the testimony of EDF’s witnesses satisfies the ordinance’s requirement for a site plan that reflects the location of all structures, existing and proposed; all open space areas; means of traffic access and all streets; contours of the site for each 5 feet of change of elevation; and the location of any residential structure within 200 feet of any property boundary line of the subject site,” Judge Wojcik said.

Attorneys for EDF and the township did not immediately respond to requests for comment.

Please use this Good Neighbor Agreement Fact Sheet to help landowners understand they will lose their right to sue a wind company over noise, shadow flicker, electronic interference, or other damages if they sign a Good Neighbor Agreement. Wind companies are “bad neighbors,” so they want adjacent, non-participating landowners to be compensated for the potential health issues caused by low-frequency vibrations, audible noise, shadow flicker, etc.

I recently read a scientific paper whose authors researched the effects of infrasound on their subjects. They concluded that people complain about turbines making them sick because that’s what they expect. This was a psychological study where the researchers put people in a “listening room” and exposed them to infrasound from a sound system – they did not use infrasound actually generated by wind turbines. I had problems accepting their conclusion. I don’t think that just because a small number of people were influenced by their psychological expectations, that it is valid to conclude that people are not negatively impacted by long periods of infrasound from wind turbines. An audiologist also had a lot to say about the inaccuracy of the study. Dr. Jerry Punch’s critique convinced me that the Crichton study was fatally flawed.

There is much to read and understand on the health issues from wind turbines. Dr. Salt’s site is perhaps the best that I’ve seen to understand HOW and WHY people are affected by infrasound from wind turbines.

Dr. Salt is a researcher with the Dept. of Otolaryngology at Washington Univ. in St. Louis. His research has been funded by NIH for over 20 years with a focus on how inner ear function depends on the fluids of the ear that bathe the sensory cells. His studies show that infrasound at frequencies as low as 1 Hz had a major influence on the function of the inner ear, even at inaudible levels. His work confirms that the inaudible, infrasound component of wind turbine noise stimulates the ear at levels that are not heard.

Finally, this report is pretty amazing. It is not only interesting from an historical perspective, as this study was presented in 1987. But, this study is very important because it discusses that people inside their home are more susceptible to low-frequencies generated by wind turbines.

The low frequency issue has been known since the late 1980’s, but wind companies are ignoring it!!!

This paper was presented by N.D. Kelley at the Windpower ’87 Conference and Exposition October 5-8, 1987, San Francisco, CA. The research was prepared for the U.S. Department of Energy.

“Given our initial experience with the low-frequency impulsive noise emissions from the MOD-1 wind turbine and their impact on the surrounding community, the ability to assess the potential of inferior low-frequency annoyance in homes located near wind turbine installations may be important. Since there are currently no universally accepted metrics or descriptors for low-frequency community annoyance, we performed a limited program using volunteers to see if we could identify a method suitable for wind turbine noise applications. We electronically simulated three interior environments resulting from low-frequency acoustical loads radiated from both individual turbines and groups of upwind and downwind turbines. The written comments of the volunteers exposed to these interior stimuli were correlated with a number of descriptors which have been proposed for predicting low-frequency annoyance. The results are presented in this paper. We discuss our modifications of the highest correlated predictor to include the internal dynamic pressure effects associated with the response of residential structures to low-frequency acoustic loads. Finally, we outline a proposed procedure for establishing both a low-frequency “figure of merit” for a particular wind turbine design and, using actual measurements, estimate the potential for annoyance to nearby communities.”

This is a look back at Gamesa’s history in Pennsylvania and how tightly it was woven with politics, promises, and taxpayer dollars.

No doubt some of you remember when Gov. Rendell and DEP Secretary Kathleen McGinty (now running for governor) wooed the Spanish wind company Gamesa to Pennsylvania with the promise of big subsidies for wind development. You’ll read about McGinty’s anguish that Gamesa is leaving PA and I’m sure John Hangar – another gubernatorial candidate – feels the same. When John Hangar was DEP Secretary (he took over when McGinty abruptly left the post), he threw even more support toward big wind development in Pennsylvania. http://www.philly.com/philly/blogs/harrisburg_politics/For-gov-candidate-McGinty-wind-plant-closure-is-personal.html

A longer, and more honest analysis of Gamesa was recently published in the Altoona Mirror:

“Wayne Donato, District 10 staff representative for United Steelworkers of America Local 2635, said Gamesa only has itself to blame for the plant closure and said the state and several green-energy groups fought for the plant, the company’s first in America.

“What folks should know is that this was all totally preventable,” he said. “Thirty-seven percent of new power generation in the U.S. in 2013 was through alternative energy sources. Everybody knows this is the direction to go.”

While several of Gov. Tom Corbett’s critics have accused him of downplaying wind energy in favor of natural gas, Donato said state and federal governments gave Gamesa millions of dollars in grants, paid to widen highways and intersections for transportation and provided the company with plenty of incentives to produce.

“We think that any of the negativity within Gamesa and its relationship in the marketplace is purely of its own doing,” Donato said. “Gamesa made its own bed as far as that’s concerned.”

Governer Rendell made a lot of promises to Gamesa, a few of which are mentioned in this article from 2005:

Finally, some of you will remember just how strong the connection was between Rendell and Gamesa. Rendell even leaned on the mayor of Tyrone and told him that Tyrone would not get their new sidewalks if they didn’t approve a lease agreement with Gamesa to develop the Sandy Ridge wind project on Ice Mountain, part of the Allegheny Front, which is an Important Bird Area. Here is the story:

The outcome of this lawsuit should be quite interesting, but even more important is the fact that landowners who signed wind leases sued E.ON and Duke Energy. They are claiming that the wind companies were not honest regarding the noise, property value reduction, and TV, telephone, or internet reception.

We should show this to anyone who is considering signing a wind lease.

A similar lawsuit over the Pinnacle wind project in WV is before a federal court.

The moral of this story: Don’t believe what the wind developers tell you!!! Turbines are noisy, they reduce property values, they interfere with electronics, and they ruin the rural peace and quiet of the countryside. In short, turbines are a nuisance!!!

RAYMONDVILLE — Two wind farms have until next week to answer a lawsuit in which residents accuse wind turbines of creating noise, devaluing property and posing possible health risks, federal court records show.

Records show U.S. District Judge Hilda Tagle requested that Duke Energy and E.ON Climate & Renewables North America and other defendants answer accusations by Feb. 6.

The companies requested Dec. 27 that the lawsuit originally filed Nov. 27 in 197th State District Court here be moved to federal court.

Twenty-three residents including Willacy County Commissioner Noe Loya and Precinct 3 Justice of the Peace Juan Silva Jr. filed the lawsuit, arguing the companies built wind turbines on their properties that created “nuisances.”

Elon Hasson, spokesman for E.ON in Chicago, said the company was reviewing the lawsuit.

“We develop all of our wind farms in a safe, state-of-the-art and responsible manner,” Hasson said in an email. “We believe these claims will be shown to have no validity.”

Tammie McGee, spokeswoman for Duke in Charlotte, N.C., declined comment but added the plaintiffs consented to the placement of turbines on their properties.

The companies built “hundreds” of wind turbines that stand 467-feet high and weigh 7 tons on the properties of plaintiffs who received or will receive money and tax benefits that will exceed $50 million, the lawsuit states.

The lawsuit states the companies “carelessly and negligently failed to adequately disclose the true nature and effects that the wind turbines would have on the community, including the plaintiffs’ homes.”

The companies told residents that the wind turbines “would not be noisy, would not adversely impact neighboring houses and there would not be any potential health risks,” the lawsuit states.

Some residents were “even forced to abandon their homes,” the lawsuit states.

The lawsuit states “permanent and irreparable harm will be caused to the area” because the companies and county did not plan to remove the turbines when their approximately 20-year lifespan expires.

Loya “can no longer enjoy sitting outside because of the loud noise,” the lawsuit states. “The turbines also cause noise both inside and outside of the home, disturbing the peace and making it difficult to enjoy living there. (Loya) also experiences problems with his television reception. The wind turbines have also had a negative impact on the value of the property, among other losses,” the lawsuit states.

The lawsuits states Silva “has difficulty sleeping, cannot have his windows open (and) cannot enjoy the sound of nature, due to loud noise from wind turbines.”

Just announced on 1/28/14 that Gamesa is closing its turbine blade facility in Ebensburg – and that is a shame for the 62 employees who will lose their job. Gamesa has decided to move its operations further west, but other companies are still working hard to build wind projects in PA. (See information at the bottom for more on Gamesa.) For once, I applaud Gamesa’s decision to leave our forested mountain tops alone….but when will other companies make the same decision?

All of the wind projects listed below are on the FAA website, except E.ON’s Jacks Mtn. project (E.ON says it is too early to apply to the FAA) and Volkswind’s project in Dauphin Co.

These are all serious possibilities, and there are even more on the PJM grid, too.

In Mifflin Co.:

1. Belleville: Jacks Mtn.: Volkswind’s 20 turbines (436 ft. tall)

2. Lewistown: Jacks Mtn.: E.ON’s 30 – 70 turbines

In Somerset Co.:

1. Addison, PA: 15 turbines just south of Mt. Davis on Negro Mountain (499 ft. tall) (OWN Energy – which builds and then sells to EverPower)

Gamesa is leaving Cambria County and concentrating on wind development in the midwest and southwest. The blade manufacturing plant began operation in the summer of 2006, and 8 years later it is closing. 62 employees will be out of work.